Select Page

Torts
John Marshall Law School, Chicago
Bernabe, Alberto

 
I.        The concept of negligence
A.     Historical Development
–          a plaintiff must establish
o       duty – a legally recognized relationship between the parties
o       (standard of care – the required level of expected conduct)
o       breach of duty – failure to meet the standard of care
o       cause in fact – πs harm must have the required nexus to the Δs breach of duty
o       proximate cause – there are no policy reasons to relieve the Δ of liability
o       damages – the π suffered a cognizable injury
–          standard of care for negligence cases – reasonable care (appropriate to the circumstances of the case)
–          Brown v. Kendall – negligence is an unintentional act that causes an injury
–          spectrum of liability
o       intentional torts – have to prove fault
o       negligence – have to prove fault
o       strict liability – do not have to prove fault
–          the basis of a negligence claim is the ‘conduct of the Δ’
o       must be intentional or negligent
–          Spano v. Perini – applied strict liability because there was no fault in the case; since π could not prove fault for the negligence claim, now there is a way for the π to recover through strict liability
 
II.     Elements of the cause of action
A.     Duty, breach and the concept of the standard of care
                        1.      The reasonable prudent person
o       has to be an objective standard – what a reasonable prudent person would have done under the same circumstances
o       failure to act reasonably constitutes the Δs breach of duty
o       how to determine whether a Δ is negligent
▪         have to figure out the conduct of the Δ (has to create an unreasonable risk of harm)
▪         see if the conduct meets the standard of care(what a reasonable person would have done in that situation)
▪         compare the reasonable person standard to what the Δ did
o       what is relevant in determining what a reasonable person would have done comes from the knowledge and understanding generally held by members of the community
                        2.      The standard of care during an emergency
o       not a defense
o       jumping out of a moving car may create an unreasonable risk of harm but may be considered as acting reasonable under the circumstances (because the reasonable person under the same circumstances would have acted the same way)
o       by arguing emergency, saying that the circumstances made the Δ act as a r

gation to protect another from harm
·        exceptions
*        landlord duty to protect – landlord creates a reliance when providing security
*        business duty to protect – business patron relationship is barely enough to establish a duty
                        4.      The standard of care in special cases
a.       Children
▪         held to a variation of a standard that compare children’s conduct to other children of the same age, experience, and intelligence under like circumstances
▪         more subjective – allows the jury to consider the child’s specific qualities
▪         children should not be entitled to special treatment when they are involved in certain types of activities(i.e. – adult activities or inherently dangerous activities[snowmobiling])
·        court will apply the wholly objective reasonable person standard used for adults
b.      Physical Disabilities
▪         Δs own physical qualities may be taken into account by the jury in the breach determination